Dann v Chief Executive Officer [2026] FCA 442 | Case summary

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Dann v Chief Executive Officer [2026] FCA 442 | Case summary | Zoe

[43]

As can be seen, the initial trial was to include the whole of the lead applicants' claims as pleaded in their Fourth Statement of Claim (4SOC). That necessarily encompassed a multitude of issues that were common in the sense that they were amenable to an order identifying Group Members who would be affected by the judgment and so bound by it: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 33ZB.
Following 3 July 2025, the parties engaged in discussions and correspondence concerning matters that would be encompassed in the initial trial. The correspondence disclosed a degree of dispute, misalignment or confusion in the parties' views as to the nature of the lead applicants' case and the nature of the evidence to be adduced in support of it. Relatedly, CEOH questioned the relevance of some lay evidence the lead applicants had filed and foreshadowed some possible implications for its ability to prepare its own evidentiary case in time for the commencement of the trial. The uncertainty also gave rise to concerns that the time allocated for the initial trial may not be sufficient. The queried lay evidence consisted of a number of affidavits made by 11 Group Members, being residents of Gunbalanya who deposed to the state of repair and other issues affecting nine premises, not including the homes of the lead applicants. It was in that way that the manner in which the lead applicants proposed to establish some of their allegations was a question relevant to the scope of the initial trial and other important case management considerations.
The parties' attempts to resolve those issues by correspondence were unsuccessful. The Court declined the parties' request that the resolution of the issues be deferred until the lead applicants had filed all of the evidence upon which they relied. That was principally because of the potential for significant disruption to the Timetable, putting the trial dates in peril, should the resolution of the issues be deferred until close to the commencement of the trial. In any event, the Court took the view that the lead applicants should be required to promptly and clearly articulate answers to some of the questions CEOH had asked. The Court itself required answers to those questions because it had the potential to impact the time, place and duration of the trial and so impact upon its judicial and administrative resources.
In circumstances described below, and following several hearings, on 3 March 2026 the Court made an order having the effect of reducing the scope of the initial trial so as to read (as amended on 5 March 2026):

[59]

Part D.4 of the 4SOC has the heading "Contract breach - Repair Systems term". It culminates at [33], where it is alleged that CEOH breached the Repair Systems Term "in the premises set out" in [30] and [31]. The text in [30] in turn contains a cross-reference to [29], such that the whole of [16] and [29] to [33] must be understood as comprising the claim founded in breach of the Repair Systems Term. The pleas in [29] to [31] (at least) are repeated by cross-references elsewhere in the pleading and it is therefore necessary to consider them as alleging facts relevant not only to the Contract Claim in Parts C and D, but also to the causes of action alleged in Parts E and I.
The plea in [30] is to the effect that CEOH had a different system for attending to repairs operating in Major Centres (Darwin, Alice Springs, Katherine and Tenant Creek) as compared with the system operating in Remote Communities. The differences relate to such things as the qualification, training and equipment of contractors and the achievement of response times for immediate and urgent maintenance. It is by reason of those differences that it is said that CEOH "did not remediate with reasonable diligence immediate or urgent defects reported in respect of Claimants' Premises" (at [32]). Particulars are given in respect of the lead applicants. No particulars are given in relation to any other Claimant.
It will be necessary in due course to return to these pleas as the lead applicants' alternate application was to have them excised from the initial trial if the 3 March Order was not revoked.
Facts and circumstances supporting the Unconscionable Conduct Claim are contained in Part E of the 4SOC. Part E.4 pleads the knowledge of (or attributable to) CEOH. As at 3 March 2026, a knowledge plea at [46(c)] appeared with a then proposed amendment as follows:
1. At all material times during the Relevant Period, CEOH by its senior officers knew or ought reasonably to have known or expected that or to the effect that:

[79]

The proposed amendments incorporated the same individual facts and circumstances specific to Claimants employed in aid of the Contract Claim (at [21], [24], [27] and [29]). Whilst they did not pick up or otherwise depend upon proof of contractual breach (at [33]), they nonetheless retained in several significant respects a direct repetition or adoption of the same facts, circumstances and conduct referred to in Part D.4. The then proposed [45AB] and [45AC] were in turn cross-referenced in the then proposed [46(c)] and [52(d)] (in respect of the Unconscionable Conduct Claim) and [102] (in respect of the RDA Claim).
In the parties' submissions the different parts of the 4SOC were described as containing pleas referable to discrete causes of action. Relevantly, Parts C and D were said to contain the Contract Claim and the ACL Guarantee Claim, Parts E and F were said to contain the Unconscionable Conduct Claim, and Part I was said to contain the RDA Claim. That broadly reflects the headings within the document and identifies where the ultimate allegation of breach or contravention is to be found. However, it does not accurately capture the extent to which the pleas contained in some parts were incorporated by cross-references into others. A trial of the issues in dispute joined by Parts A to D and associated aspects of CEOH's defence would not be confined solely to the resolution of claims founded in contract but will resolve a number of significant disputed questions of fact and law, being common questions that are incorporated by cross-reference into other causes of action. That is why the 3 March Order was expressed in terms of pleaded facts and circumstances rather than a bifurcation of the trial by labels attached to any particular cause of action.
Before concluding this survey of the pleadings, I should add that the lead applicants were not granted leave to make some of the proposed amendments including because the proposed plea at [45AB] was impermissibly vague in its reference to "many of the premises".

[83]

At a hearing on 19 February 2026, Counsel for the lead applicants clarified the purposes for which the evidence of the Gunbalanya deponents would be adduced with specific reference to the then proposed amended pleading, with particular reference to the Unconscionable Conduct and RDA Claims. I have already mentioned how those pleas in turn picked up and incorporate allegations of fact idiosyncratic to Claimants and their houses in [21], [24], [27] and [29]. I have already mentioned that those paragraphs contain particulars of the lead applicants houses and no other houses. More than that, the pleas stated that the provision of particulars in relation to other Claimants should await the conclusion of the first tranche of the trial.
It may be accepted that the lead applicants' own claims involve allegations of systemic problems in the housing system and that evidence of Aboriginal people who are Group Members (as well as other lay witnesses) may be admissible on those aspects of the lead applicants' own claims. The systemic aspects of the lead applicants' claims include pleas concerning the tenants of remote housing in the Northern Territory as forming a "class" of persons sharing "class attributes" relevant to the Unconscionable Conduct and RDA Claims. The relevance of Group Members' evidence for such purposes on the lead applicants' claims is orthodox. It is understood by the Court and not disputed by CEOH. The issue that arose over a series of hearings was not so much one of relevance and admissibility, but one concerning the need for clarity, the provision of notice and, relatedly the discharge of the Court's obligation to afford CEOH a fair opportunity to prepare its evidentiary case.
As to notice, the Court was taken to correspondence passing between the solicitors for the lead applicants and CEOH in which CEOH sought clarification of the extent to which the lead applicants would present their case by seeking to prove facts and circumstances relating to the condition of any home other than the home of the lead applicants. In a letter dated 29 May 2024, CEOH made it clear that the nature of the evidentiary case to be presented would impact considerably on the length and nature of the trial. In a query relating to the RDA Claim, CEOH's solicitor asked:

[87]

I will refer to that as the 2024 Correspondence.
The 2024 Correspondence is consistent with earlier exchanges between the parties in 2023 concerning the appropriate scope of discovery. In those exchanges solicitors for the lead applicants made it plain that they did not seek discovery to facilitate granular proof of defects affecting the homes of individual Claimants other than the lead applicants. The work undertaken by CEOH to comply with the discovery categories did not provide an occasion to research and collate material relating to any premises.
CEOH's difficulties in obtaining a clear answer to questions relevant to the proper progression of the matter is exemplified by an exchange of correspondence in November 2025, after the affidavits of the Gunbalanya deponents were filed. The content of the correspondence is extracted into the ninth affidavit of Mr Timothy Finney sworn on 19 March 2026 and need not be reproduced here. It is sufficient to say that the lead applicants should at that time have listened to the very real concerns of CEOH having the potential to derail the Timetable. They should not have taken the position that their intended case was sufficiently explained by the pleadings alone. The same ink could and should have been expended providing a clear articulation of the use to which evidence of the Gunbalanya deponents was to be put. Had they undertaken that task promptly, the unintended glitch in their pleadings may have become apparent.
By 3 March 2026 the lead applicants had put on evidence to the effect that they were (and would be) non-compliant with deadlines for the filing of some further proposed lay evidence and for the filing of their expert evidence. I will describe the extent and nature of the non-compliance later in these reasons. For present purposes it is sufficient to say that the lead applicants were themselves in no position to file critical expert evidence relevant to the Unconscionable Conduct and RDA Claims and, significantly, nor could they say when that evidence might be filed. Notwithstanding those disclosures, the lead applicant had made no application for an extension of those deadlines, nor had they made an adjournment application at that time so as to enable the Court to decide such an application on its substantive merits.
As explained in the oral reasons previously given (and as is apparent from the transcript of the earlier hearings in any event), the Court enquired whether the matter was amenable to an order for the trial of separate questions so as to divert the parties' resources to an initial trial of reduced scope. That view was expressed in light of CEOH's confirmation that it could prepare for a trial contesting the facts alleged by the Gunbalanya deponents if the scope of the trial were otherwise to be confined. The proposal reflected the reality that a complete trial incorporating the whole of the Unconscionable Conduct Claim and the RDA Claim could not fairly proceed in any event because of the lead applicants' own lack of preparedness.
The oral reasons given on 19 February 2026 and 3 March 2026 refer to a number of case management considerations weighing in favour of an order reducing the scope of the initial trial. They included a finding that if the trial were to be reduced to the issues joined in Parts A to D and H of the 4SOC and related aspects of the CEOH's case in response to those pleas, then the resources of the parties could realistically be diverted to achieve that end.
Given the manner in which the hearings had unfolded, on 19 February 2026 the Court raised with the parties the features of the order that might be made so as to reduce the scope of the initial trial. After the luncheon adjournment, Counsel for CEOH presented a minute of order having the effect of reducing the scope of the initial trial in a way that reflected the earlier exchange.
On 3 March 2026, the lead applicants opposed the entry of the order. They sought to have a further two weeks to consider the issue. They submitted that an alternative approach would be to vacate the trial dates altogether with a view to commencing a trial at an unspecified time in 2027.
I declined to defer the resolution of the issue, principally because the parties required certainty as to how their resources should be expended in the weeks that followed.
I nonetheless granted the parties liberty to apply to vary or revoke the 3 March Order including because it remained open to a party to seek to adjust the scope of the initial trial to introduce efficiencies or address any demonstrated substantive unfairness. Even without that grant, it, at all times remained an option in the lead applicants to apply for an adjournment of the trial dates or the variation of any interlocutory order. That is what they did by their interlocutory application to which I now turn.

[91]

Section 37M applies in cases where the Court exercises a discretionary power of a particular kind. However, it is not in itself discretionary in nature. As explained in Prodata Solutions Pty Ltd v South Australian Fire and Emergency Services Commission (No 3) [2020] FCA 1210, the command in s 37M conditions the manner in which the discretion is to be exercised. Compliance with its test is mandatory. Where there are choices between alternatives, the Court must evaluate the extent to which each choice promotes or detracts from the overarching purpose.
In addition to the discretion to grant an adjournment, the Court has the power under r 30.01 of the Rules to order that a question arising in the proceeding be heard separately from other questions. That too forms a part of the Court's practice and procedure provisions. The Court may, at any stage of a proceeding, exercise a power mentioned in the Rules of its own initiative: Rules, r 1.40.
In the present case, the powers just referred to are to be exercised in the context of a proceeding governed by Pt IVA of the FCA Act involving some degree of factual complexity. Part IVA contains s 33C. Among other things, it provides that a representative proceeding must give rise to a common issue of law or fact among at least seven claimants. The focus of the trial in a representative proceeding is the adjudication of "one or more common questions of fact or law for persons whose claims involve the same, similar or related circumstances": Gill v Ethicon Sàrl (No 3) [2019] FCA 587; 369 ALR 175, Lee J (at [6]).
The lead applicants' list of common issues is set out on the face of their Fourth Originating Application. At the commencement of the claim there were 101 of them. The list has not been markedly reduced. The allegations relate to the provision of public housing in 73 Remote Communities having thousands of tenants and occupants. The pleaded issues span periods of six years or more. Multiple defects having different characterisations are alleged in respect of each home.
The lead applicants contend that the 3 March Order offends s 33ZB of the FCA Act. It provides:

[94]

Unlike discretionary powers relating to practice and procedure, s 33ZB goes to matters of substance. When an order is made under s 33ZB, a statutory estoppel arises so precluding a person affected by the judgment from later raising individual claims with respect to the same matter: Timbercorp Finance Pty Ltd (In liq) v Collins [2016] FCA 44; (2016) 259 CLR 212. It is for that reason that s 33ZB has been described as pivotal to the scheme established by Pt IVA: Gill, at [4].
It is conventional in a representative proceeding to identify, by way of a Merck order, the common issues of law or fact to be determined at an initial trial. An order of that kind takes its name from the judgment of the Full Court in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; 355 ALR 20. It is also conventional that an initial trial in a representative proceeding will include the determination of the lead applicants' claims. Necessarily, judgment on the lead applicants' claims will entail resolution of one or more common issues given that the existence of such an issue or issues is an essential characteristic of a representative proceeding. In accordance with that convention, the order of 3 July 2025 identified that the lead applicants' claims were to be determined at the initial trial. The Court itself suggested a modification to the Merck order then proposed so as to put that beyond doubt.
Section 33ZB is concerned with the effect of a judgment given in a representative proceeding but has nothing to say about the mode of the trial culminating in that judgment. A "judgment" for the purposes of s 33ZB may be given after an initial trial or after more than one trial of separate questions. Nothing in s 33ZB requires that the whole of a lead applicants' case (or the case of any other person) be heard and determined in a single trial. Whether it is permissible or appropriate to order that a lead applicants' own case be tried in tranches is not a question with which s 33ZB of the FCA Act is directly concerned. However, the existence of s 33ZB must necessarily inform the exercise of the Court's powers at the pre-trial stage, including its powers to define, confine or expand the scope of an initial trial and any subsequent trials.
As Lee J said in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; 377 ALR 234 (at [376]), as a consequence of the Full Court's observations in Merck:

[104]

Plainly enough, the 3 March Order fragments the hearing of the lead applicants' claims. The consequence is that the lead applicants' claims will be tried in two tranches rather than one. However, it is not correct to say (as appears in an affidavit of the lead applicants' solicitor) that the 3 March Order "cut down the scope of the initial trial to certain facts and circumstances idiosyncratic to the [lead applicants], predominantly (but not exclusively) as pleaded in Parts C-D of the 4SOC and possibly other group members".
The structure of the pleading is such that the trial will resolve all questions of fact and law contained in Parts A to D and (where relevant) H, which will encompass the Contract Claim including the ACL Guarantee Claim. In addition, it will result in the resolution of disputed common questions of fact that are relied upon in support of the Unconscionable Conduct Claim and the RDA Claim. The partial resolution of those claims will occur to the extent that Parts E to J and I of the pleading incorporate by cross-reference any fact or circumstance alleged in Parts A to D and H (being the parts to be tried). At the time of the 3 March Order that integration was significant. On a new pleading now sought to be relied upon it has reduced somewhat, but not entirely.
The partial resolution of the Unconscionable Conduct Claim and the RDA Claim is also achieved by that part of the order that includes in the initial trial "the particular facts and circumstances alleged in connection with the lead applicants wheresoever they appear under the heading 'particulars' in Parts E to J and I of the [4SOC]". That part of the order serves an important case management purpose. It is to ensure that the lead applicants' idiosyncratic facts and circumstances be adduced at the initial trial for all purposes in the proceeding so as to avoid the lead applicants being called to give evidence twice, in respect of the very same subject matter.
Accordingly, a focus of the trial is upon the facts alleged by the lead applicants irrespective of the causes of action to which those facts might relate. The Court's findings in rejecting or accepting the lead applicants' allegations of fact relating to their own personal circumstances will necessarily bind the lead applicants and CEOH for the purposes of the subsequent trial. There is nothing unfair about that, given that the lead applicants have put on their affidavits incorporating all of the evidence they wish to personally give in relation to all causes of action.
I do not accept the contention that the 3 March Order "removed most of the common issues" from the initial trial. The fourth originating application reveals a significant portion of the multitude of common issues (as the lead applicants themselves perceive them to be) arising under the relevant parts of the 4SOC encompassed within the initial trial, including the significant allegations in [29] to [32], discussed below.
As to the spectre of their being a multiplicity of appeals, there would be no appeal as of right from any orders that might be made at the conclusion of the initial tranche of the trial. Any orders that may be made following the initial trial orders would be interlocutory in the sense that the dispute will be part heard. To the extent that the Court makes findings, an appeal does not lie from findings per se. In any event, whether it is in the interests of justice to grant leave to appeal from any orders made at that time is a question governed by well-established principles. The prospect of their being an application for leave to appeal is acknowledged, however in all of the circumstances described in these reasons it is a consideration to be afforded little weight, relative to other considerations.

[105]

The contention that the 3 March Order prolongs the final resolution of all Group Members' claims must be considered in a context where the Court is engaged in a comparative exercise involving alternate scenarios.
The first scenario is that there be an initial trial having the reduced scope reflected in the 3 March Order (as subsequently amended on 26 March 2026). There is a relative degree of certainty with respect to the progression of that part of the lead applicants' claims to trial. The Court has made provision in its own calendar for both the conduct of the trial commencing in October 2026 and the preparation of judgment in the weeks or months following.
The lead applicants' alternative scenario is that the initial trial be delayed. The difficulty in assessing that scenario in terms of the passage of time is that, on the material before me, it is impossible to identify the timeframe in which the lead applicants say a trial of all of the issues arising on their claims could proceed at all. That is an important consideration, given that the Court is to identify the best means of attaining the outcome that the dispute be justly resolved and "as quickly, inexpensively and efficiently and as possible".
What is required to act "as quickly, inexpensively and efficiently as possible" in a given case must turn on the practical realities on the ground. As at 3 March 2026 (as now) the Court was confronted with the stark reality that the lead applicants wish to rely on significant amounts of expert evidence relevant to the Unconscionable Conduct and RDA Claims, and yet they did not know and could not say when the most critical of that evidence would be filed. That state of affairs persisted on 26 March 2026.
The expert evidence was due to be filed on 27 February 2026. The table below identifies the expert witnesses retained by the lead applicants, the dates on which they were first retained, the part of the pleading to which their evidence relates and the estimation (if any) given by the Mr Finney (in his eighth affidavit of 2 March 2026) as to when each expert report would be complete:

[107]

The evidence of Mr Finney did not explain why the experts were engaged on the dates identified (including as late as November 2025, January 2026 and February 2026). An explanation was called for, given that in mid 2025, the Court had required the lead applicants to inform CEOH of the areas of expertise upon which they may rely and urged them to commence the preparation of their expert evidence at that time. In addition, where it was said that a witness was unable to confirm when his or her report would be ready, the reason for that inability was in some instances not given.
In any event, whatever be the cause of the problem, it was plain that the disputed issues in Parts E to J and I of the 4SOC could not proceed to trial in October 2026. The disclosures made by Mr Finney in his eighth affidavit reinforced my view that the initial trial tranche could and should be reduced.
By his tenth affidavit of 24 March 2026, Mr Finney confirmed that the experts who would give evidence at the first tranche of the trial (if the 3 March Order was not revoked) were Professor Lansbury, Dr Bauert OAM, Mr Newell and Mr Stephenson. Mr Finney anticipated that the lead applicants would be in a position to finalise their evidence by 13 April 2026.
In addition to those delays, the parties remain embroiled in a dispute about the nature of the evidentiary case to be presented by the lead applicants in respect of the Unconscionable Conduct and RDA Claims. The lead applicants propose that the trial dates be vacated so that those disputes can be resolved and so that further amendments can be proposed to the pleadings. The disputes are largely (but not exclusively) confined to matters pleaded in Parts E to J and I of the 4SOC. In my view, those ongoing disputes introduce yet further uncertainty as to when those aspects of the lead applicants' claims could be readied for trial. The dispute between the parties on that topic has the potential to alter the length of the trial of the remaining issues, and significantly so. It may be that some of the issues will be resolved once critical expert reports come to hand. But as I have said, the date when that will occur is presently unknown. The lead applicants say that the trial should be listed at an unspecified time after the parties have filed "any interlocutory applications they consider appropriate, in order that the parties can move forward in an orderly way". The nature of those applications is not identified.
The implication in that submission is that any disorder in the proceeding to date is not due in part to choices made by the lead applicants themselves. There is nothing disorderly about a timetable progressing the issues referred to in the 3 March Order to trial. The order introduces a greater degree of certainty and predictability. It reduces the scope of interlocutory debate bedevilling the parties and affords the lead applicants the time they require to prepare their evidentiary case in respect of the Unconscionable Conduct and RDA Claims. At the same time, it increases the certainty that Parts A to D and H may proceed to trial by the initial prioritisation of all parties' resources to that part of the dispute.
In all of the circumstances, the fact that the lead applicants' claims will be tried in two parts does not, in and of itself, demand a conclusion that the final resolution of the Group Members' claims will necessarily be prolonged, relative the alternative scenario.

[108]

Further on the topic of delay, I have had regard to the lead applicants' evidence and submissions concerning prospects of settlement in a representative proceeding and the methodology employed by solicitors and others in assessing and quantifying Group Members' claims. Evidence on that topic is contained in the ninth affidavit of Mr Finney sworn on 19 March 2026. I have had regard to his methodology evidence, accepting that he possesses qualifications and experience in respect of that discrete topic: cf Earglow Pty Ltd v Newcrest Mining Ltd [2015] FCA 328; (2015) 230 FCR 469, Beach J. Mr Finney's evidence about methods of calculating awards of damages for use in a mediation may be accepted as sound. I am more critical of Mr Finney's opinion evidence as it relates to other matters.
Generally speaking, I accept that the formulation of a reasonable basis for settlement of Group Members claims is aided by the reasons for judgment given in respect of all of the common issues arising on a lead applicant's claim as well as other common issues that may be conveniently tried. I also accept that there is at least a potential for different financial remedies available in respect of different causes of action. Again, speaking generally, I accept that there is less utility in an initial judgment of some aspects of the lead applicants' pleaded questions of facts and law, viewed in comparison with a judgment on all aspects of their claims. The 3 March Order does not preclude a trial of all of the lead applicants' claims. Rather, it is concerned with the mode of timing of that trial.
However, in this matter Parts E to J and I of the lead applicants' pleadings remain unsettled and they have filed no evidence upon which the parties might make an assessment of damages with respect to any cohort of Group Members. The Court cannot say when that evidence might have been forthcoming in the lead up to the trial as originally constituted.
The parties have reported to the Court their inability to agree on a significant array of interlocutory issues. They have had access to a Registrar of the Court not only for the mediation of the matter more generally but in respect of interlocutory disputes as they arise. The trial is now only six months away. Whatever might have been the prospects of settlement before the trial as previously scoped, I do not accept that the 3 March Order has materially affected those prospects. To the extent that CEOH has suggested in correspondence that the scope of the mediation might also be reduced, that is a misstatement that the mediator can address.
As at 3 March 2026 it was reasonable for CEOH to direct its resources away from mediation and toward the preparation of its evidentiary case, whatever be the scope of that trial.

[109]

I have mentioned that this proceeding has been on foot since December 2022. Prior to July 2025 the parties had been engaged in long running and expensive interlocutory processes relating to pleadings, discovery, opt out notices and the delineation of the initial scope of the trial. The Court has already expressed concern that the very considerable costs thus far incurred are a significant impediment to the settlement of the proceeding.
As with the submissions relating to delay, the submission that the 3 March Order is productive of increased costs is to be assessed by reference to the alternative position that an initial trial should be deferred to some unspecified time in the future.
The proceedings have thus far been disrupted in part by the lead applicants' inability to firm up their pleading and a related inability to provide timely and clear information about the evidentiary nature of their case to the extent necessary to give CEOH a reasonable opportunity to prepare for the trial. It is those ambiguities that have made it so difficult for the parties to agree Merck orders, a process that ordinary should not be so costly and burdensome.
In the circumstances just described, it is near impossible make a reliable prediction as to the least expensive means by which there might be final resolution of all of the Group Members' claims. Considerable costs have been expended in the preparation of the trial set down to commence in October 2026. The focus of the parties' resources on the issues identified in the 3 March Order introduces an efficiency in the sense that the work necessary to ready more limited questions for trial can be completed, culminating in a resolution by the Court of a significant number of disputed issues, predictably in the first half of 2027. Viewed in the abstract, there may be inefficiency in that course when compared with the original orders on 3 July 2025, considered together with the Timetable then set. But that is no longer the relevant comparator. A trial of all of the issues arising in the lead applicants' claims in October 2026 is not what the lead applicants now propose including because (importantly) they could not themselves have been ready for such a trial in the circumstances persisting on 3 March 2026 and indeed now.
The 3 March Order does not prevent the lead applicants from continuing with the preparation of their evidence in readiness for the second trial tranche. Accordingly, the money and effort expended on that evidence is not wasted. The preparation of the evidence itself appears necessary for the matter to have any realistic prospects of settling in any event.
I will deal separately with debate about Part D.4 of the 4SOC.

[110]

On 19 February 2026 the lead applicants contended that the conduct of their case at the trial preparation stage had not given rise to an issue of procedural fairness adversely affecting CEOH. I rejected that contention in the course of oral reasons for making the 3 March Order. In the submissions in support of the adjournment application the lead applicants again raised that issue. Their primary contention was that no issue of procedural fairness arose by virtue of the manner in which they had conducted their case at the pre-trial stage.
The lead applicants' submissions correctly identify that the filing of the Gunbalanya deponents' evidence was a primary source of the CEOH's complaint of procedural unfairness. The lead applicants are also correct in their submission that the 3 March Order added to the questions to be tried "idiosyncratic issues raised in evidence of witnesses not advanced as sample group members". Those submissions are made in part to contest the Court's finding that there was indeed a real issue of procedural fairness arising from the lead applicants' conduct of their case. They are also made for the purpose of challenging the Court's assessment that the reduction in the initial trial scope was a preferable response when compared with other options to ameliorate the unfairness (such as an adjournment or ruling the evidence inadmissible).
Coinciding with the adjournment application at the hearing on 26 March 2026, the lead applicants proposed the further amended pleading annexed to the ninth affidavit of Mr Finney. Unlike the 4SOC and unlike the amendments proposed at the hearing of 19 February 2026, it eliminates nearly all of the cross-references that had previously directly incorporated the facts alleged at [21], [24], [27] and [29] to [32] (contained in Part D) into other parts of the pleading relating to the Unconscionable Conduct Claim and RDA Claims (contained in Parts E and I). Exceptions are found in [102] (retaining a cross-reference to the matters pleaded at [29] to [30]) and [88(c)] (retaining a cross-reference to [30]).
By reference to the newly proposed amended pleading, at the hearing on 26 March 2026, Counsel for the lead applicants informed the Court that if the scope of the initial trial remained as it presently appears in the Timetable Version 5, the Gunbalanya deponents would not be called to give evidence at that initial trial. In light of that, the 3 March Order was varied so as to delete references to there being any trial of the facts and circumstances alleged in those affidavits.
I have previously said that, subject to appropriate exceptions, an Aboriginal person giving evidence in the proceeding in relation to their idiosyncratic facts and circumstances should be called to give evidence only once, and for all purposes for which those facts and circumstances are relevant. That explains the additional order made on 3 March 2026, expressed as follows:
1. The determination of any question of fact or law relating to the individual circumstances of any claimant referred to in these orders shall be binding on that claimant and the respondent, and shall not be revisited in any subsequent trial, whether or not the claimant is named as a party to the proceeding.
The Court did not by that order compel the lead applicants to call the Gunbalanya deponents to give evidence, nor to give evidence they did not otherwise propose to give. Rather, the order reflected the circumstance that the lead applicants confirmed that they would be calling those witnesses to attest to the idiosyncratic facts and circumstances they had voluntarily deposed to. I concluded that the Gunbalanya deponents should, in their capacity as Group Members, be precluded from revisiting findings made at the initial trial when it came time to advance their individual claims by reference to the very same facts and circumstances. The order has in any event been revoked because the potential of a person being called to give the same evidence twice does not now arise.
The introduction of "idiosyncratic facts" relating to the Gunbalanya deponents' homes was, as at 3 March 2026, the applicants' forensic choice.
The allegation that no procedural unfairness arose from that choice is to be determined on the facts, circumstances and pleadings as they existed at 3 March 2026 not on the basis of the latest iteration of a proposed amended pleading or a later forensic choice.
Importantly, the evidence of the Gunbalanya deponents was filed in circumstances where CEOH had made it known that the presentation of a case in a granular fashion would have significant implications for CEOH's own forensic decisions and trial preparations. I accept that there have been other occasions when the lead applicants had referred to an intention to call lay witnesses, but that is not enough to retract the very clear assurance given in the 2024 Correspondence. Unequivocal notice was required to be given on an intention to seek granular findings at the level of a particular dwelling not only because of the 2024 Correspondence but because of the nature and volume of evidence potentially relevant to each dwelling and also because the sheer number of dwellings renders it impossible for CEOH to guess which dwellings the lead applicants might invite the Court to make specific findings about. The potential difficulties that might occur by the failure to give notice of such claims to my mind are obvious. Furthermore, it is unacceptable that the lead applicants were unwilling or unable to give clear responses to the queries made by CEOH about the uses to which the evidence was to be put by reference to the pleading in the weeks and months after it was filed. The Court itself found the process of securing clear answers to that question excruciatingly difficult, made all the more difficult by the acknowledged problems with the pleading containing clear linkages between paragraphs that (as it turns out) were not intended to be there.
The Court acted on evidence concerning the nature and extent of the impact of that lay evidence on the CEOH's ability to fairly prepare for the trial. That impact is described in an affidavit of Ms Lecia Wood sworn on 16 February 2026. Ms Wood there described the scale of the work undertaken in dealing with the pleaded claims of the lead applicants' premises. Approaching the numbers conservatively, more than 10,000 documents have been discovered as bearing on questions relating to the state of their houses alone. Ms Wood then referred to the nine additional lots mentioned in the affidavits of the Gunbalanya deponents. They deposed to an average of 20 defects in relation to each of those nine lots. Counsel for CEOH expressed concern about the ability to review the large volume of documents relevant to proving or disproving the defects. The burdens fell to be considered in addition to the then existing burden of preparing for the trial on the Unconscionable Conduct and RDA Claims with all of the complications then besetting them.
It is unnecessary for present purposes to refer to other lay evidence relating to a further 123 premises in Gunbalanya, 70 further premises in Santa Teresa, 41 further premises in Yuendamu, 21 in Laramba and 47 in Papunya. It was sufficient at the time to find that a significant issue of procedural fairness loomed at least by reference to the nine premises referred to by the Gunbalanya deponents. Ms Wood's evidence (which I accepted) was that the review of the documents to prepare CEOH's responsive case on the evidence would involve many weeks of work. That is work that could have been commenced at a much earlier time had the lead applicants properly notified CEOH of their intention to call evidence from Aboriginal lay witnesses in relation to those lots, or evidence descending into granular detail in a manner inconsistent with assurances given in the 2024 Correspondence.
CEOH confirmed that it could prepare for a trial responding to the contested facts deposed to by the Gunbalanya applicants if the trial were otherwise confined. That course presented an additional efficiency in that arrangements were already on foot for the Court to receive evidence in Gunbalanya and the considerable expense associated with that exercise could be deployed in the task of receiving evidence from the witnesses using the same interpretation and transcription services.

[111]

The lead applicants submitted that the Court should and could have adopted the alternate course of excluding evidence that was productive of procedural unfairness. That course was indeed open. It was open not only in respect of the Gunbalanya deponents, but also in respect of all other evidence not filed in the timeframes the Court had previously ordered. Those timeframes were fixed having regard to the time required for CEOH to prepare its responsive case and for other steps to be taken preparatory to trial once that evidence was received.
The submission of the lead applicants discloses an attitude that it should be left to CEOH to complain about unfairness, and to bring an application to seek relief in respect of it on each occasion that the lead applicants are in default of a deadline. The attitude is especially problematic in respect of the large amount of material the lead applicants presently intend to file notwithstanding that the deadline for doing so has come and gone and notwithstanding that no application for an extension of the deadline has been made. The practice of leaving it to a respondent party to seek a ruling in an advance of trial to exclude evidence on the grounds of unfairness is not consistent with the obligations of parties and their advisers under Pt VB of the FCA Act. It is a practice that treats too casually the authority of the Court and the binding nature of its orders. It ignores an express instruction earlier given by the Court that a deadline should not be allowed to pass without a defaulting party applying for relief in respect of it.
In addition, the lead applicants' submission once again ignores the very significant circumstance that their expert reports on complex and critical matters would not on any view be filed within the ordered deadline or at any time proximate to it. Accordingly, if the affidavits of the Gunbalanya deponents were excluded, the next problem productive of unfairness loomed large. It would have been a wasteful exercise to have CEOH continue to prepare for its case in defence of the whole of the lead applicants' claims when it was apparent that the lead applicants could not file and adduce certain critical expert reports without significant prejudice to CEOH occasioned by the delay. Whilst attractive at first blush, the exclusion of evidence as a means of ameliorating present and future unfairness was not the course that best promoted the overarching purpose.

[114]

The plea in [30(b)] then erects a contrasting system or practice to the effect that there was no or insufficient trained staff, no or no adequate contractors, and a failure to achieve remediation times other than by chance.
The contrast erected by those pleas is expressed in objective terms. Their proof does not depend on the subjective intent. Nor does their proof depend upon any enquiry concerning the race of the lead applicants or any class to which they belonged. Without diminishing their importance, they go to what might be described as "operational matters".
I have already mentioned that the objective matters alleged in [29] to (at least) [31] were repeated by cross-reference elsewhere in the pleading in support of pleas in Parts E and I. By way of example, in support of the RDA Claim it was alleged that the difference between the repair response times for Remote Communities as compared to Major Centre housing involved a distinction based on race and so amounted to a contravention of the RDA Act. In support of the Unconscionable Conduct Claim there were allegations concerning the knowledge of CEOH. For example, it was alleged that CEOH knew or ought to have known breaches of the contractual terms (including the Repair Systems Term) were "widespread" (as in [46(c)]) of the 4SOC. On the proposed amended pleading as at 3 March 2026, there was an allegation at [45AC] that CEOH engaged in the conduct alleged in [29] to [32], being a mere repetition of those pleas without addition or adornment, and an allegation that "many" of the premises occupied by members of the class to which Claimants belonged were "affected by problems of the kind" alleged at [21], [24] and [27] (notwithstanding that those paragraphs particularise problems affecting only the lead applicants). The then proposed knowledge plea was that CEOH knew that there existed "widespread deficiencies and systemic problems of the kind pleaded in paragraphs 45AB and 45AC, in respect of premises occupied by the members class".
The lead applicants submitted that the issues arising and evidence relevant to the issues alleged in [29] to [31] cannot be "meaningfully disentangled" from the issues arising and the evidence relevant to the Unconscionable Conduct and RDA Claims. They pointed to the cross-referenced pleas I have summarised. They submitted that the pleas involved "overlapping evidence" and that they would be forensically disadvantaged in the first tranche of the trial by reason of their being unable to draw upon on evidence relevant to the Unconscionable Conduct and RDA Claims contained in Parts E to J and I, which they said might be probative of the issues pleaded at [29] to [31].
On the material to which I was taken, the lead applicants did not establish how evidence adduced in support of the Unconscionable Conduct and RDA Claims could forensically inform the matters alleged in Part D.4. The Unconscionable Conduct and RDA Claim presuppose the existence of the objectively differential system pleaded in Part D.4. Moreover, in the course of argument before the 3 March Order, the lead applicants were directly asked to identify which experts were to be called in respect of which parts of the pleading. Their responses are reflected in the table appearing earlier in these reasons. The experts giving evidence in support of the please in Parts E to J and I were not intended to be called in support of the allegations in Parts A to D and H. No discrete submission was made in connection with "overlapping" evidence that might be given by Professor Hall or Dr Bauert. As at 26 March 2026, their reports had not been filed.
Put simply, there either existed a repair system of the objective kind pleaded at [29] to [31] or there did not. Proof of those matters does not turn on questions of the attributes of the class to which the lead applicants belong, nor upon whether the differential system involved a distinction based on race. Rather, the Unconscionable Conduct and RDA Claims proceed from the established footing that facts and circumstance in [29] to [31] are objectively true.
Nothing in the 3 March Order precludes the lead applicants from relying on all evidence they consider necessary to prove the allegations in Part D.4.
The lead applicants are yet to file the documentary evidence upon which they rely. They did not seek to make good the present complaints by reference to documentary examples. Rather, they alleged that "the documentary case, which will rely to an extent on discovery, will be different but overlapping, as between the evidence to support [102] and the evidence to support [29] - [31]". Again, that is an abstract submission made some months after the last tranche of discovered documents has been provided. The evidence may "overlap" to the extent that the objective facts in [29] to [31] must be established on the evidence if the "disparity based on race" allegation is to have a factual foundation to proceed from. That appears clear from [102] itself where the pleas in [29] to [32] are simply picked up and repeated. The pleas in [29] to [32] are facts and circumstances described in the 3 March Order. I have already mentioned that their incorporation in the initial tranche of the trial will mean that an aspect of the Unconscionable Conduct and RDA Claims will be resolved by the resolution of the disputed objective facts.
I add that for more than a year CEOH has been pressing the lead applicants for information about how they proposed to present a case in respect of allegations of the kind appearing at [29] to [32], [46(c)], [102] and elsewhere in circumstances where particulars of only two Claimants had been provided, no particulars of any other premises had been provided, no sample Group Members had been agreed and the evidence to date filed had not served to illuminate the lead applicants' intentions.
Those requests for information were entirely reasonable and consistent with the CEOH's own obligations to prepare an evidentiary case in defence of the claims in a timely way. The questions were also necessary to ensure that the Court had an accurate assessment of the trial length. The process of obtaining answers to CEOH's questions relating to [29] to [32] is ongoing. To aid in the process, the Court has seen fit to order particulars of those pleas, just as it was necessary to order written submissions relating to the purpose to which the evidence of the Gunbalanya deponents was to be adduced.
To the extent that the lead applicants say that CEOH is seeking to confine them, on the initial trial, to "some cut down aspect of its repair system, as it relates to or is applied in Gunbalanya", that is not a confinement presently ordered by the Court and the Court has not been called upon to make a ruling to break an impasse between the parties in respect of it.
It is sufficient to say that the lead applicants must establish that, whatever be the geographical nature of the repair system, the sub-standard aspects of the repair system came home to roost in their own homes, in Gunbalanya. That is because, on their own pleaded case (at [32]), it is "by reason of" the matters pleaded at [29] to [31] that CEOH did not remediate with reasonable diligence the immediate or urgent defects present in their own premises. The same causal connection is pleaded in respect of each and every Claimant.

[116]

In his tenth affidavit, Mr Finney says that the ongoing dispute concerning the case to be presented by the lead applicants in connection with the repair system pleas at [29] to [32] in and of itself provides a justification for those parts to be excised from the initial trial. I do not accept that assertion, including because I am not satisfied that the lead applicants have taken appropriate steps thus far to resolve the dispute. By way of example, CEOH's solicitor recently wrote to the lead applicants to again raise the topic of the case intended to be presented. They asked what were the facts and circumstances on the ground in Gunbalanya (such as the number and skillset of local tradespersons), what were the facts upon which the lead applicants relied in respect of the sufficiency and adequacy of repair systems in Major Centres versus Remote Communities and what were the facts and issues the lead applicants intended to raise in relation to the "system operated out of Darwin" and the operation of that system in communities other than Gunbalanya.
Those are reasonable questions given that the deadlines for the filing of affidavits has passed, and there is no suggestion that the answers can readily be found in the evidence thus far filed. Once again, CEOH is entitled to have a better understanding of the case to be met.
No response to the questions was given. Instead, in his tenth affidavit, Mr Finney said that the lead applicants opposed an order that they give better particulars of the pleas because their position was that the pleas should not be included in the initial trial at all. The particulars were ordered to be given after it became clear at the hearing on 19 March 2026 that Counsel for the lead applicants was unable to give clear and illuminating responses to the Court's own questions about the evidentiary scope of the trial. The lead applicants should not be granted an adjournment because of an extant ambiguity concerning their own case in circumstances where they have not resolved those ambiguities when given the opportunity to do so.
In his tenth affidavit Mr Finney disclosed that the lead applicants continue to review documents provided on discovery. He went on to say that the likely scope of the relevant evidence that the lead applicants would lead in respect of the efficacy of the repair system would be "limited to lay and documentary evidence as to the [lead applicants'] (and their co-habitants') personal interactions with the repair system". He stated that the lead applicants have never intended to prosecute their case alleged in [29] to [32] by reference to the facts pertaining to Gunbalanya only. He continued:

[121]

The plea has been in that form since the Defence was first filed. Particulars have been given in relation to a repair system operating in Gunbalanya in two iterations of the Defence and in correspondence. In the course of submissions I was not taken to a "newly proposed" amendment to that part of the Defence.
Mr Finney's tenth affidavit is the first time that the Court has heard of an asserted need for a further category of discovery to be made by CEOH arising out of anything alleged at [29] of the Defence. There has not been an application for more discovery, nor any application for CEOH to provide better particulars of the plea. Particulars were most recently sought in September 2025, and provided in October 2025. CEOH at that time provided details of the documentary evidence upon which it would rely by reference to discovery already made. It is open to the lead applicants to make a prompt and directed application for further discovery. There is otherwise insufficient detail given of the asserted need for discovery to justify the exclusion of the pleaded issues from the initial trial.
The existence of the ongoing disputes about the trial of the joined issues do not otherwise provide a proper basis to excise the pleadings in [29] to [32] of the 4SOC from the initial trial. Rather, they provide an impetus for court intervention to end any remaining impasse. If the Court has misunderstood the nature and scope of the dispute, then the lead applicants may bring an application to have it resolved.
As to the assertion that the lead applicants need more time to prepare their case more generally, that assertion is made in circumstances where their allegations in [29] to [32] of the 4SOC were always part of the case to be tried and the time for filing lay and expert evidence in relation to the pleas has passed. The Court must proceed on the basis that the lead applicants had a proper basis to make the allegation, or the plea could not otherwise have been included. The lead applicants' own failures to better particularise the plea or to provide some explanation of the evidentiary foundation for it should not be used as a basis to obtain an adjournment to secure more time to prepare their case in respect of it.

[122]

The Court is concerned not only with the just resolution of the present proceeding, but with the just resolution of all proceedings before it: FCA Act, s 37M(2)(a). The time set down in the calendar of a docket judge for the hearing and determination of a matter is a precious public resource. Necessarily, time set down for one purpose is not then available for another purpose. The vacation of a trial set down for six weeks is disruptive to the overall disposition of matters before the Court. There may be cases in which an order involving some inefficiency in one proceeding serves a purpose of an efficiency gained in the management of an overall workload. So much is recognised by s 37M(2)(c). Similarly, timeliness in the disposition of matters is not to be assessed by reference solely to the particular matter at hand, but by reference to the overall timely disposition of all proceedings before the Court. Regard may also be had to financial inefficiencies relating to the operational requirements of travel, including procuring services for a remote hearing.
That is not to say that considerations of the kind just discussed are determinative, nor to say that they modify the requirement to afford procedural fairness to a party. However, they do emphasise the need for a party seeking an adjournment to either show that the asserted need for an adjournment has not arisen because of their own choices in the litigation or, if it does so arise, to put forward a compelling reason why the adjournment should nonetheless be granted. The circumstance that a party might be forensically disadvantaged in their case if they do not have more time to prepare for a trial is not of itself sufficient. That is because the obligation of the Court is not to proceed to trial when all parties are optimally ready in a forensic sense. The obligation of the Court is to afford the party a reasonable opportunity to be ready. What is done with that opportunity is a matter for the party. I am satisfied that the lead applicants have a fair opportunity to prepare for the initial trial as now defined and that there is no relevant forensic disadvantage of the kind that renders the order unjust.

[124]

It is necessary to mention the newly proposed amendments to the lead applicants' pleading. It is submitted that the amendments have the effect of eliminating any procedural unfairness previously affecting CEOH. The Court had already deferred argument relating to the first tranche of the trial between December 2025 and February 2026 so that the lead applicants could have an opportunity to revise the pleadings once the significance of the cross-references became apparent to them. The lead applicants chose to bring in a proposed amendment that retained many of the cross-references with all of the consequences that entailed. The changing plea has been the product of delay, disruption and confusion. The amendments put forward at the earlier time were not "minor" as the lead applicants suggest. It was open to them to bring forward the latest proposed version at an earlier time, but they did not do so.
The introduction of the new amendment at this late stage does not create the fiction that the amendments were proposed at the time that the 3 March Order was made. After months of argument and several hearings based on two other versions of the pleading thus far, the Court should not entertain a new proposal for the progression of the matter to trial merely because the lead applicants now wish to make different amendments. The lead applicants will be heard further in relation to the amendments, but the fact that they are now proposed does not persuade me that the initial trial should be vacated.
The decision not to call the Gunbalanya deponents has further reduced the scope of the initial trial and to some extent its utility, but not to such a degree that it should affect the outcome explained in these reasons. The decision does not alter the circumstance that the 3 March Orders was made to address the issue of procedural fairness in fact persisting at that time. Nor does it change the Court's firm view that an Aboriginal witness called to give evidence in the proceeding should give evidence only once. Nor does it change my view that findings of fact in relation to any individual facts and circumstances they allege should be binding in connection with all issues in respect of which those very same facts and circumstances are relevant.

[127]

He went to express the view that the 3 March Order "appears to work counter" to his "understanding of how best to give effect to the overarching purpose in class action litigation" in respect of a number of factors which he then proceeds to discuss. He purports to give a "respectful" opinion as to how Pt VB of the FCA Act ought to have been applied.
Mr Finney is a solicitor with experience in the conduct of class actions. He is not qualified to express opinions of the kind contained in his affidavit as to how the Court should perform the evaluation under s 37M of the FCA Act having regard to the disruptions in the proceeding described in these reasons. It is not appropriate that he venture into that territory. The issues discussed in these reasons are of course matters about which solicitors and Counsel may make submissions in a partisan manner, in the usual tradition of Counsel assisting the Court. But submissions going to the ultimate issue as how the Court should have exercised is powers at an earlier time should not be put forward as expert opinion. It is a form of improper cavilling, and the practice should be strongly discouraged.
The irony is that on 3 July 2025 the Court made the very order that the lead applicants now seek to reinstate. The Court does not require the opinion of an expert to find that the conventional approach ordered on that day is preferable in the ordinary course. Mr Finney's assertion that the 3 March Order is "unprecedented" is expressed without any regard to the unprecedented manner in which this matter has unfolded to date, the uncertainties besetting the lead applicants' pleading (for which he is ultimately responsible) and associated uncertainties concerning the intended manner of proof and hence the nature and length of the trial.
Elsewhere in the affidavit, Mr Finney includes material alluding to some unfairness attending the hearing of 19 February 2026 and 3 March 2026. The submissions and evidence suggest that the hearings in December, February and March were concerned about common questions and that a reduced trial scope was never under contemplation. The affidavit does not give a complete picture as to how the many pages of written submissions and many hours of oral submissions unfolded, nor of the whole of the subject matter traversed.
Mr Finney relies upon Earglow, a case in which a Judge had proactively suggested a course that would have compelled the lead applicants to adduce evidence from Group Members other than the lead applicants, before ultimately deciding against that course. Here, there was no suggestion or requirement from the Court that any witness be called by any party. Rather the Court was confronted with a situation in which the lead applicants filed lay affidavits of Group Members without being sufficiently forthcoming about their intentions with respect to them. Those choices only served to compound and inflame an ongoing dispute about what the scope of the initial trial should be, and that scope was in any event affected by the delays disclosed in Mr Finney's affidavit of 2 March 2026 in any event.
The test for resolving the present application is not whether the 3 March Order is "unprecedented". The test is whether the 3 March Order as now revised best promotes the overarching purpose, having regard to all of the facts and circumstances of the case.

Dann v Chief Executive Officer

At a glance

Court

Decision date

Before

Source

Judgment (128 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)